Codes of practice – Code C Detention, treatment and questioning of persons by police officers
DRAFT - Revised PACE Code C (Detention)
2016
This draft for revising the Police and Criminal Evidence Act 1984 (PACE) Code of Practice C, is being circulated for statutory consultation in accordance with section 67(4) of PACE. It sets out proposals for revising the Code.
Responses to the Consultationshould be sent to to arrive no later than Tuesday 17May2016.
The table on the next page briefly summarises all the changes (excluding minor grammar and typographical corrections) with links to the provisionsand Notes for Guidance.
Clickhere to view this table.
For access to,and comparison with, the PDF version of Code C which came into force on 2 June 2014, click on the link below:
Overview of changes:
1.Interpreters:
The main change is to enable interpretation services for suspects being interviewed to be provided by interpreters who are not physically present in the location where the interview is carried out by way of a ‘live-link’ electronic communication system. This ‘live-link interpretation’ is allowed for, but not required, by EU Directive2010/64 in which Article 2(6) provides “Where appropriate, communication technology such as videoconferencing, telephone or the Internet may be used, unless the physical presence of the interpreter is required in order to safeguard the fairness of the proceedings.” The revisions therefore require the interpreter’s physical presence unless certain conditions are satisfied and allow ‘live-link interpretation’. The proposed revisions to Code C (Detention) will be mirrored, as applicable, in Code H (Detention – terrorism).
Background:
(a)The current position is that the Codes neither expressly permit or preclude the use of live-link audio-visualcommunications technology for interpreters.
(b)For many years police have used telephone interpreting services for the initial action when explaining an arrested person’s rights and entitlements and other matters on arrival at a police station and for other ‘routine’ non-evidential communication with the suspect.
(c)There are however, some key aspects of the provisions in the Codes that govern the conduct and recording of suspect interviews that actually imply that physical presence of the interpreter is required. In general terms, these require the interpreter to make a written record for the interviewer to present (there and then) to the suspect to check and sign, or have it read out (via the interpreter) to the suspect, who is then asked (via the interpreter), to check and sign the written record as correct or indicate inaccuracies.
(d)The changes are constrained by the approach in Article 2(6)and aim to ensure, as far as practicable, that the suspect is not, and does not feel, disadvantaged, by not having the interpreter physically present. This needs to be assessed on each occasion that the suspect requires the assistance of an interpreter to enable them to communicate effectively. Before an interview, the suspect’s solicitor (in any case where legal advice is requested) and the appropriate adult (for any juvenile or mentally vulnerable suspect) must be asked for their views. If there is doubt about the suspect’s ability to adequately cope with the live-link arrangements during the interview, the physical presence of the interpreter will be requiredunless an inspector authorises live-link interpretation. For completeness and consistency, a similar approach is applied to other more routine occasions when an interpreter is required which unlike interviews, do not directly involve evidence gathering and so that the potential impact is significantly less.
(e)The revisions set out the terms and conditions whereby the interpreter need not be physically present and include modifications of the current provisions referred to in (c).
2.‘Definition of ‘juvenile’ & detention of juveniles after charge:
(a)The changes in section 16implement the amendment to section 37(15) of PACE effective from 26 October 2015. This raises the age threshold which defines ‘juvenile’ for the proposes of the detention provisions in Part IV of PACE and the Codes, from under 17 to under 18.
(b)The amendment means that the requirement in section 38(6) for a juvenile detained after charge to be moved to local authority accommodation applies to all 17 year olds.
(c)The content of the certificate to be completed by the custody officer and to be given to the court if a juvenile is not moved to local authority accommodation is clarified and a requirement for the operation of this provision to be subject to supervision by an inspector is also proposed.
(d)As a consequence, the definition in C1.5 is amended and for the purposes of the Code, the term ‘juvenile’ now includes all 17 year olds. The various qualifications in the October 2013 revision that extended certain provisions of the Code applicable to 17 year olds in have therefore been deleted. The statutory provisions identified in C1.5A will remain until such time that they are amended by Parliament.
3.Risk Assessment and identity of detainees:
Changes in C3.6highlight the need to check all sources of relevant information in order to establisha detainee’sidentity.
4.Other changes include:
(a)Electronic note books and records: Changes in C1.17 enable electronic ‘pocket books’, as well as records and forms to be used to make records required by the Codes.
(b)Appropriate adults: Changes in Note 1Fclarify who would not be eligible to act as the appropriate adult. New provision previously established in Code H, to allow an appropriate adult to be removed from an interview if they prevent proper questioning. Reasons and authority level required follow the rules applicable to removal of solicitors.
(c)Detained girls under the age of 18: New C3.20ANote 3Gpoint out requirement under section 31 of the Children and Young Persons Act 1933 with link to College of Policing guidance.
(d)Minor typographical and grammatical corrections have been made and out of date references updated.
Clickhere for the Table of Contents of the draft revised Code C.
Click here to access the Notice of Rights and Entitlements on GOV.UK to which Code C 2014 (paragraph 3.2) refers and which applies from 2 June 2014.
22March 2016
SUMMARY & EXPLANATION OF CHANGES TO CODE C
Click on underlined links to view relevant revised text of the Code.
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Document Review Tab settings: When viewing this document on screen with the “Display for Review” option set at <Final Showing Markup>, most of the formatting tracked changes have been accepted to reduce clutter, as a result, the layout of the text in <Original> view will not be identical to the current code but all the original text should be there.
For ease of reference, the grey highlighted text indicates changes other than deletions and this highlighted text is also shown when the “Display for Review” option is set at <Final>.
Key: AA = appropriate adult.
No. / Paragraph / Summary of changes, reason/purposeCommencement / The revised Code will come into force as specified in the Order.
C1.5Note1L / Updated toreflect amendment to definition of “arrested juvenile” in s37(15) of PACE. Supported by Note 1L.
C1.5ANote1M / Updated following amendment to s37(15) PACE to refer to the remaining statutory provisions that are subject to s65 (appropriate consent) which is not amended & for whichthe upper age threshold in the Act which is reflected in the Codes remains at 16. Supported by Note1M.
Note1L / Supports C1.5 re the definition of “arrested juvenile” in s.37(15) of PACE
Note1M / Supports C1.5A by referring to the provisions of the Codes for which upper age threshold reflects s.65 PACE and therefore remains at 16. The list of provisions & procedures in sub-paragraphs (a) to (d) for which a 17-year-old requires an appropriate adult deleted. They are not required following the revision of C1.5.
C1.7(a)(iii)/(b)(iii)
Note 1F / Reference to Note 1F added to extend the categories of individuals who, by virtue of their role, are not eligible to act as the AA at a time when they are performing that role. Applies to police support volunteersand detention or escort officersemployed by a contractor & designated in accordance with s.39 Police Reform Act 2002.
C1.17 / Extends references to pocket book to include electronic recording devices.
Note1AA / Supports C1.0 Amended to reflect the Equality Act 2010 by referring to an exhaustive list of relevant protected characteristics.
C2.4, C2.4A & C2.5 / Deletion of ‘Note’ pointing out that C1.5Awhich extends requirements about access to custody records to the appropriate adult for a 17 year old detainee. It is not required following the revision of C1.5.
C3.6 / Extends risk assessment action to include checking relevant records in addition to the PNC. Reflects current operational good practice
C3.12(a) / Introducesreference to interpreter assistance being arrangedas described by C13.1ZAto enable changes to support use of live-link interpretation as defined in C13.12to facilitate communication with who require an interpreter.
C3.13C3.14
C3.15, C3.17C3.18 / Deletion of Notes pointing out that C1.5A extends the requirements in C3.13, C3.14, C3.15, C3.17 & 3.18 to 17 year olds. Not required following revision of C1.5.
C3.19C6.5A / Deletion of Notes pointing out that C1.5A allows the appropriate adult to ask for legal advice on behalf of a 17 year old. Not required following revision of C1.5.
C3.20ANote 3G / New paragraph to point out the requirement in s.31 of the Children and Young Persons Act 1933 concern female detainees under the age of 18. Supported by a new Note 3G with link to the College of Policing APP
Note 3A / Link to Notice of Rights and Entitlements updated.
C3.21(b) / Clarify need for consent of the parent/guardian of juvenile.
C4.4 / Clarifies that a property record which is not made in the custody record is to be treated as part of the custody record.
C6.5A / Points out that when juvenile or vulnerable detainee asks for legal advice, action should not be delayed to await the arrival of the appropriate adult- taken from deleted 2nd sentence of Annex ENote E1. (see 36)
Deletion of Note pointing out that C1.5A extends requirement about cell accommodation and keeping juveniles and adults separate to 17 year old detainees. Not required following the revision of C1.5.
C8.8 / Deletion of Note pointing out that C1.5A extends requirement about cell accommodation and keeping juveniles and adults separate to 17 year old detainees. Not required following the revision of C1.5.
C Note 9B / Frequency of visits to detainees: Note pointing out extension to 17 year old detainees deleted. Not required following revision of C1.5C1.5A.
C10.2 / Clarifies information to be given prior to a voluntary interview.
C10.12A / Not used. Cautions & special warnings,C10.12A pointing out that C10.11A & C10.12 extend to 17 year old detainees deleted. Not required following the revision of C1.5C1.5A.
C11.12, C11.15
C11.18
C Note11C / Interviews of juvenile and vulnerable suspects: Notespointing out extension to 17 year old suspects deleted. Not required following revision of C1.5C1.5A.
C11.16
C Note11D / Interviews at schoolarrests at school: Notes pointing out extension to 17 year olds deleted. Not required following revision of C1.5C1.5A.
C11.17A new. / Provisions for removing an appropriate adult from interview if they prevent proper questioning - taken from Code H for consistency.
C13.1,13.1A, 13.2, 13.2A, 13.5, 13.9, 13.10, 13.10A, 13.10D, 13.11 / Text amended to include a reference to making arrangementsas described by C13.1ZAfor an interpreter to enable live-link interpretation as defined in a new C13.12under a new sub heading “(h) Live-linkinterpretation”. References to live-link interpretation provisions added
C13.2AC13.6 / Requirement to arrange interpreter for parent/guardian/AA of a juvenile who is interviewed extended to AA for a mentally disordered/mentally vulnerable suspect: Note pointing out extension to 17 year olds deleted. Not required following revision of C1.5C1.5A.
C13.6 / Calling interpreter for juvenile: Note pointing out extension to 17 year olds deleted. Not required following revision of C1.5C1.5A.
C13.7 / Clarification
C13.12, C13.13Annex N / New sub heading (h) introduces new provisions and a new Annex to define and enable live-link interpretation. C13.13 makes chief officers responsible the security and integrity of the live-link arrangements in their police area.
C15.2A
C15.3(c)
C15.3C(a) / Reviews and extension of detention: Notes pointing out extension to 17 year old detainees deleted. Not required following revision of C1.5C1.5A.
C16.1, C16.3C16.4AC16.6 / Charging juveniles: Note pointing out extension to 17 year old detainees deleted. Not required following revision of C1.5C1.5A.
C16.7Note 16D / Transfer of juvenile to LA accommodation: Note pointing out that the requirement to transfer a juvenile detained after charge to local authority accommodation does not apply to 17 year olds deleted. Not applicable following revision of C1.5C1.5A.
C16.7 / Changes introduce requirements for reasons why transfer is not practicable to be shown on the certificate to reflect the statutory provisions and for supervision/monitoring by an inspector or above.
Annex A 5 / Note pointing out extension to 17 year old detainees deleted. Not required following revision of C1.5C1.5A.
AnnexE Note E4 / Amended for consistency with regard to C3.16 & role of the appropriate adult for the purposes of assessments under s.136 of the Mental Health Act 1983
AnnexE4
NoteE1 / For completeness, reference to the revised C6.5A(see 18) added.
Annex M 2 / Reference to live-link interpretation provisions added
Annex N / New Annex which with C13.12C13.13, enables live-linkinterpretation as an exemption from the general rule in C13.1ZA that the interpreter must be physically present. Part 1 sets out the conditions for the exemption and Part 2 sets out consequential modifications to specified provisions of the Codes.
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DRAFT
POLICE AND CRIMINAL EVIDENCE ACT 1984 (PACE)
CODE C
REVISED
CODE OF PRACTICE FOR THE DETENTION, TREATMENT AND QUESTIONING
OF PERSONS BY POLICE OFFICERS
Presented to Parliamentpursuant tosection 67(7B)of the
Police and Criminal Evidence Act 1984 (PACE)
DRAFT
POLICE AND CRIMINAL EVIDENCE ACT 1984 (PACE)
CODE C
REVISED
CODE OF PRACTICE FOR THE DETENTION, TREATMENT AND QUESTIONING
OF PERSONS BY POLICE OFFICERS
Commencement - Transitional Arrangements
This Code applies to people in police detention after 00.00 [DD-MM-YYYY], notwithstanding that their period of detention may have commenced before that time.
1
Contents
1General......
Notes for Guidance
2Custody records
Note for Guidance
3Initial action
(a)Detained persons - normal procedure
(b)Detained persons - special groups
(c)Persons attending a police station or elsewhere voluntarily
(d)Documentation
(e)Persons answering street bail
(f)Requirements for suspects to be informed of certain rights
Notes for Guidance
4Detainee’s property
(a)Action
(b)Documentation
Notes for Guidance
5Right not to be held incommunicado
(a)Action
(b)Documentation
Notes for Guidance
6Right to legal advice
(a)Action
(b)Documentation
Notes for Guidance
7Citizens of independent Commonwealth countries or foreign nationals
(a)Action
(b)Documentation
Note for Guidance
8Conditions of detention
(a)Action
(b)Documentation
Notes for Guidance
9Care and treatment of detained persons
(a)General
(b)Clinical treatment and attention
(c)Documentation
Notes for Guidance
10Cautions
(a)When a caution must be given
(b)Terms of the cautions
(c)Special warnings under the Criminal Justice and Public Order Act 1994, sections 36 and 37
(d)Juveniles and persons who are mentally disordered or otherwise mentally vulnerable
(e)Documentation
Notes for Guidance
11Interviews - general
(a)Action
(b)Interview records
(c)Juveniles and mentally disordered or otherwise mentally vulnerable people
(d)Vulnerable suspects - urgent interviews at police stations
Notes for Guidance
12Interviews in police stations
(a)Action
(b)Documentation
Notes for Guidance
13Interpreters
(a)General
(b)Interviewing suspects - foreign languages
(c)Interviewing suspects who have a hearing or speech impediment
(d)Additional rules for detained persons
(e)Translations of essential documents
(f)Decisions not to provide interpretation and translation.
(g)Documentation
(h)Live-link interpretation
(a)Audio and visual communication
(b)Audio and visual or audio without visual communication.
Notes for Guidance
14Questioning - special restrictions
Note for Guidance
15Reviews and extensions of detention
(a)Persons detained under PACE
(b)Review of detention by telephone and video conferencing facilities
(c)Documentation
Notes for Guidance
16Charging detained persons
(a)Action
(b)Documentation
Notes for Guidance
17Testing persons for the presence of specified Class A drugs
(a)Action
(b)Documentation
(c)General
(d)Assessment of misuse of drugs
Notes for Guidance
ANNEX AINTIMATE AND STRIP SEARCHES
AIntimate search
(a)Action
(b)Documentation
BStrip search
(a)Action
(b)Documentation
Notes for Guidance
ANNEX BDELAY IN NOTIFYING ARREST OR ALLOWING ACCESS TO LEGAL ADVICE
APersons detained under PACE
BNot used
CDocumentation
DCautions and special warnings
Notes for Guidance
ANNEX CRESTRICTION ON DRAWING ADVERSE INFERENCES FROM SILENCE AND TERMS OF THE CAUTION WHEN THE RESTRICTION APPLIES
(a)The restriction on drawing adverse inferences from silence
(b)Terms of the caution when the restriction applies
Notes for Guidance
ANNEX DWRITTEN STATEMENTS UNDER CAUTION
(a)Written by a person under caution
(b)Written by a police officer or other police staff
ANNEX ESUMMARY OF PROVISIONS RELATING TO MENTALLY DISORDERED AND OTHERWISE MENTALLY VULNERABLE PEOPLE
Notes for Guidance
ANNEX FNot used
ANNEX GFITNESS TO BE INTERVIEWED
ANNEX HDETAINED PERSON: OBSERVATION LIST
ANNEX INot used
ANNEX JNot used
ANNEX KX-RAYS AND ULTRASOUND SCANS
(a)Action
(b)Documentation
Notes for Guidance
ANNEX LESTABLISHING GENDER OF PERSONS FOR THE PURPOSE OF SEARCHING
(a)Consideration
(b)Documentation
(c)Disclosure of information
Notes for Guidance
ANNEX MDOCUMENTS AND RECORDS TO BE TRANSLATED
Table of essential documents:
Documentation
Notes for Guidance
ANNEX NLIVE-LINK INTERPRETATION (PARA. 13.12)
Part 1: When the physical presence of the interpreter is not required.
Part 2: Modifications for live-link interpretation
(a)Code C paragraph 13.3:
(b)Code C paragraph 13.4:
(c)Code C paragraph 13.7:
(d)Codes C, E and F - interviews
(e)Codes E and F, paragraph 4.18 (signing master recording label)
Notes for Guidance
1
Codes of practice – Code C Detention, treatment and questioning of persons by police officers
1General
1.0The powers and procedures in this Code must be used fairly, responsibly, with respect for the people to whom they apply and without unlawful discrimination. Under the Equality Act 2010, section 149, when police officers are carrying out their functions, they also have a duty to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation, to advance equality of opportunity between people who share a relevant protected characteristic and people who do not share it, and to take steps to foster good relations between those persons. See Notes 1Aand 1AA.
1.1All persons in custody must be dealt with expeditiously, and released as soon as the need for detention no longer applies.
1.1AA custody officer must perform the functions in this Code as soon as practicable. A custody officer will not be in breach of this Code if delay is justifiable and reasonable steps are taken to prevent unnecessary delay. The custody record shall show when a delay has occurred and the reason. See Note 1H.